Newspaper Articles

This collection of articles was published in the Detroit Legal News from 1995-1997. All were written in the infancy of the modern Internet, before the landscape surrounding Internet legal and business issues began to develop. Access to the Internet largely consisted of dial-up connections on a 14.4 kbs modem or slower. Both the technology and state of the law have evolved considerably since these were first published.

The White Paper

Originally published November 29, 1995

In the next segment in this series, we'll begin our look at the primary new weapons in the information and communications arsenal. But let's first examine whether all of this techno-talk is worth the fuss. Is the so-called information revolution a passing fad that doesn't merit the attention it's getting? Apparently our government doesn't think so. In fact, it has been formulating its vision of the future for the past few years.

In 1993, President Clinton created the Information Infrastructure Task Force to develop governmental policy on emerging information technologies. The Task Force is comprised of three major committees: the Telecommunications Policy Committee, the Committee on Applications and Technology, and the Information Policy Committee.

In September, the Working Group on Intellectual Property Rights, an Information Policy Committee subgroup created to examine intellectual property law and policy aspects of information technologies, released its final report entitled "Intellectual Property and the National Information Infrastructure." Known as the "White Paper," the document is a segment of the current administration's vision on the role of the government and legal system in the emerging world-wide telecommunications network referred to as the National Information Infrastructure (NII) and the Global Information Infrastructure (GII).

The White Paper is an excellent and comprehensive primer on intellectual property law. It also explores legal aspects of computer-driven commerce, current and emerging technologies and applications, and the need for educational curriculum changes to highlight the importance of preservation of intellectual property rights. It is a worthwhile read for lawyers with even a passing interest in the area. However, the real meat of the White Paper is its view of "Information Policy."

The White Paper begins with a summary of the tremendous applications and opportunities associated with the integration of computer and communications technologies. And, to the dismay of cybernauts and on-line service providers, its concludes very quickly.

"[T[he full potential of the NII will not be realized if the education, information and entertainment products protected by intellectual property laws are not protected effectively when disseminated via the NII."

The recommendations of the Information Infrastructure Task Force are filtered throughout the 238-page document. Among the highlights of the recommendations are:

• Allowing for enforcement of on-line licensing and "electronic contracts." Because licensing is governed by state law, in this regard, the White Paper supports revisions to Article 2 of the UCC to encompass licensing of intellectual property.
• Refraining from creation of exemptions or higher standards of liability for on-line service providers accused of copyright infringement (even "innocent" or unintentional) as a result of actions of their users [note: although the White Paper does not address service provider liability in the defamation context, its language arguing for liability is even stronger than that in the Stratton Oakmont v. Prodigy case where intentional or willful ignorance would presumably shield the operator from liability.]
• Formulation of international rules to protect the rights of providers of information and entertainment products capable of near instantaneous global transmission, including harmonizing different levels of copyright protection available in the United States and foreign countries.
• Equipping the NII with security measures to ensure confidential information distributed through the NII remains confidential.
• Encouraging technological solutions to controls on the use and access of digitized information (for example, user identification and authentication procedures to restrict access and encryption or scrambling of digitized signals to protect confidentiality and facilitate computer-based Commerce).
• Adoption of comprehensive model curriculum and public awareness campaigns to educate the public the importance of copyright protection laws.
• Tweaking the Copyright Act to expressly recognize the new communications mediums being developed, and to maintain the Constitutional balance between copyright owners and users.
• Creating criminal sanctions for large scale unauthorized distribution or copying not undertaken for financial gain (such as "dumping" copyrighted material onto the Internet).
• Prohibiting the manufacture of devices that serve to defeat technological methods of preventing unauthorized use of copyrighted materials.

The recommendations of the White Paper are geared almost exclusively at intellectual property law. The task force doesn't even attempt to comprehensively address the wide-ranging legal issues related to the NII in commercial and other areas. And the recommendations are, without a doubt, pro-copyright.

The rationale for the recommended changes is blessed with Constitutional underpinnings "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." According to the authors, protection of intellectual property rights is key to the success of the NII. The White Paper also suggests that the current wild, wild west mentality of the existing global communications network will not be tolerated for long.

Overtly or covertly, the message is clear: We need new laws and we need them quickly!

The White Paper is available free of charge on-line through the Detroit Legal News on the Internet at www.legalnews.com or by sending a written request to: Intellectual Property and the NII, do Terri A. Southwick, Attorney-Advisor, Office of Legislative and International Affairs, U.S. Patent and Trademark Office, Box 4, Washington, D.C. 20231